Morris Chetile Machunjilu v Reime Kenya Limited [2016] KEELRC 1045 (KLR)
The bottom line
#Kenya's Employment Court refused to dismiss an old employment claim for delay, but gave the claimant just 14 days to fix it or lose the case.
What this practically means
#Executive summary
#Key legal issues
#Applicability of dismissal for want of prosecution in the Industrial Court
The ELRC (Procedure) Rules 2010 contain no provision for dismissal for want of prosecution, so the court looked to Order XVI Rule 5 of the Civil Procedure Rules for guidance
The court observed the absence of an express rule on dismissal for want of prosecution within its own procedural rules and invoked the Civil Procedure Rules provision allowing a defendant to apply for dismissal where a plaintiff fails to set a suit down for hearing within three months. The court treated this as guiding its discretion rather than as a directly applicable rule.
Principles governing exercise of discretion in dismissal for want of prosecution
The court adopted the principles from Mwangi S. Kimenyi v Attorney General & Another, considering inordinate delay, intention, prejudice, explanation for delay, and the interests of justice
The court quoted the guiding principles developed for dismissal for want of prosecution applications, then applied them to the facts. It noted the claimant filed no replying affidavit and gave no formal explanation, though submissions asserted financial hardship. It found the parties had misunderstood the directions of 7th October 2014 and that no substantial prejudice beyond costs had been demonstrated.
Whether the applicant demonstrated prejudice
The applicant had not shown prejudice beyond the incurrence of further legal costs, which is incidental to prosecuting any suit
The court noted the respondent had not demonstrated what prejudice it would suffer if the matter proceeded to hearing except incurring further costs, which the court considered a matter usually incidental to the prosecution of any suit. Weighed against the claimant's financial hardship and the interest of hearing cases on the merits, this did not justify dismissal.
Legal principles established
#- The Employment and Labour Relations Court (Procedure) Rules 2010 do not provide for dismissal for want of prosecution; such applications rely on Order XVI Rule 5 of the Civil Procedure Rules
- A party may be granted a last opportunity to have a suit heard on the merits where the delay is explained and the parties have misunderstood court directions
Court orders
#- 1.The application to dismiss the matter for want of prosecution is not allowed
- 2.The parties shall appear before the court for taking of a hearing date within 14 days from the date of the ruling, failing which the suit will stand dismissed for want of prosecution
- Jurisdiction invoked
- Industrial Court Act No. 20 of 2011; Employment and Labour Relations Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morris Chetile Machunjilu v Reime Kenya Limited [2016] KEELRC 1045 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1045/eng@2016-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.